Mithilesh Kumar Rai vs State Of U.P. And 4 Others
2022 Latest Caselaw 1296 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 33
 

 
Case :- WRIT - A No. - 3350 of 2022
 

 
Petitioner :- Mithilesh Kumar Rai
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Atipriya Gautam,Rishabh Kesarwani,Sr. Advocate
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

Heard Mr. Rishabh Kesarwani, learned counsel for the petitioner and Mr. S.C. Upadhyay, learned Counsel for the State-respondents.

By means of the present writ petition, petitioner has assailed the order dated 22nd September, 2021 passed by the Inspector General, P.A.C.Eastern Zone, Prayagraj i.e. respondent no.3 , whereby the petitioner has been transferred from 34th Vahini P.A.C. Varanasi to 42nd Vahini P.A.C. Prayagraj. Further the petitioner has prayed for a direction upon the respondents to permit him to continue at his present place of posting i.e. 34th Vahini P.A.C. Varanasi.

It is the case of the petitioner that the petitioner is a Company Commander (Dal Nayak) i.e. Group "C" State Government Employee and he is presently posted at 34th Vahini P.A.C. Varanasi. The petitioner has been working on the said post with extraordinary devotion and honesty and the service of the petitioner is unblemished and exemplary. The petitioner has always discharged his duties with full satisfaction of his superior authorities. However, under the order dated 22nd September, 2021, the petitioner has been transferred from 34th Vahini P.A.C. Varanasi to 42nd Vahini P.A.C. Prayagraj. It is against this order of transfer that the present writ petition has been filed.

Learned counsel for the petitioner submits that respondent no.3 has no authority/power/jurisdiction to pass the order impugned transferring the petitioner, who is Group "C" State Government Employee. He further submits that since the family of the petitioner is residing at District Varanasi and at present it is impossible for the petitioner to shift the entire family with bag and baggage in these hard times at his transferred place of posting. Against the order impugned, certain personal difficulties which have been faced by the petitioner, have also been highlighted before this Court by the learned counsel for the petitioner. On the cumulative strength of the aforesaid, learned counsel for the petitioner submits that the impugned order of transfer is arbitrary, illegal and without jurisdiction, therefore the same is liable to be quashed.

On the submission made by the learned counsel for the petitioner that the impugned order of transfer is without jurisdiction as respondent no.3 has no jurisdiction/power/authority to pass such order, Mr. S.C. Upadhyay, learned counsel for the State respondents submits that in compliance of the order of the Court dated 30th March, 2022, he has received the instructions and on the basis of the same, Mr. Upadhyay submits that respondent no.3 has jurisdiction/authority to pass an order transferring a Group-C State Government Employee like the petitioner. Therefore, the order impugned is legal and valid. Mr. Upadhyay further submits that a P.A.C. personnel can only remain posted in a particular district for not more than 12 years, whereas the petitioner has completed 13 years and 11 months in a same district i.e. Varanasi. Lastly, Mr. Upadhyay submits that since the petitioner has disobeyed the order of his superior authorities like the order impugned by not joining at the transferred place of posting in compliance of the same, therefore, he is not entitled for any relief. Learned counsel for the State-respondents, therefore, submits that the impugned order of transfer does not suffer from any jurisdictional error. Therefore, learned counsel for the State submits that there is no illegality or infirmity in the order impugned.

In rejoinder, the learned counsel for the petitioner does not dispute the aforesaid submissions made by the learned counsel for the State. However, the learned counsel for the petitioner prays that seeing the personal difficulties as faced by the petitioner, after his joining, his request for transfer to 34th Vahini P.A.C. Varanasi from 42nd Vahini P.A.C. Prayagraj may be directed to be decided in accordance with law.

This Court has considered the submissions made by the learned counsel for the petitioner and has carefully scanned the records of the present writ petition. This Court finds substance in the submissions made by the learned counsel for the respondents that the order impugned does not suffer from any jurisdictional error within the four corners. However, this Court can consider the submission made by the learned counsel for the petitioner that seeing the personal difficulties as faced by the petitioner, his request for transfer to 34th Vahini P.A.C. Varanasi from 42nd Vahini P.A.C. Prayagraj may be directed to be decided in accordance with law, but seeing the fact that the petitioner has not joined at the transferred place of posting i.e. 42nd Vahini P.A.C. Prayagraj till date after lapse of a period of more than seven months from the date of order impugned to be precise on 22nd September, 2021, this petition, at the behest of a person like the petitioner, who does not comply the administrative order of his superior officer after a period of more than three months, cannot be entertained by this Court in exercise of powers under Article 226 of the Constitution of India.

The Apex Court in the case of Union of India & Others Vs. S.L. Abbas, reported in (1993) 4 SCC 357, has held that the guideline in respect of transfer does not confer upon the Government employee a legally enforceable right. The relevant part of the judgment reads as under:

"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."

In the case of N.K. Singh Vs. Union of India & Others reported in (1994) 6 SCC 98, the Apex Court after referring a large number of previous judgments has held as under:

"6. Shri Ram Jethmalani, learned counsel for the appellant did not dispute that the scope of judicial review in matters of transfer of a Government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision or guideline regulating such transfers amounting to arbitrariness. In reply, the learned Additional Solicitor General and the learned counsel for Respondent 2 did not dispute the above principle, but they urged that no such ground is made out; and there is no foundation to indicate any prejudice to public interest."

The Apex Court in Rajendra Singh & Others Vs. State of Uttar Pradesh & Others, reported in (2009) 15 SCC 178, has held that a Government servant has no right to remain posted at the place of his choice. Relevant part of the judgment reads thus:

"8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires (see State of U.P. Vs. Gobardhan Lal;(2004) 11 SCC 402: 2005 SCC (L&S) 55, SCC p. 406, para 7)."

In the case of S.C. Saxena v. Union of India & Others reported in (2006) 9 SCC 583, the Apex Court has observed that a Government servant cannot disobey the transfer by not reporting at the place of posting. It is his duty to first report for work and if he has some difficulty / personal problem, he can make a representation after joining at his new place of posting. The Supreme Court has deprecated the practice of not reporting at the place of posting and indulging in litigation. The Apex Court held as under:

"6. We have perused the record with the help of the learned counsel and heard the learned counsel very patiently. We find that no case for our interference whatsoever has been made out. In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. Apart therefrom, if the appellant really had some genuine difficulty in reporting for work at Tezpur, he could have reported for duty at Amritsar where he was so posted. We too decline to believe the story of his remaining sick. Assuming there was some sickness, we are not satisfied that it prevented him from joining duty either at Tezpur or at Amritsar. The medical certificate issued by Dr. Ram Monohar Lohia Hospital proves this point. In the circumstances, we too are of the opinion that the appellant was guilty of the misconduct of unauthorisedly remaining absent from duty."

(Emphasis added)

In view of the aforesaid, this Court finds no good ground to interfere in the present matter, while exercising its powers under Article 226 of the Constitution of India.

Accordingly, this petition is dismissed.

However, it will always be open for the petitioner to represent his grievance before the authority concerned after his joining at the transferred place of posting.

(Manju Rani Chauhan, J.)

Order Date :- 18.4.2022

Sushil/-